Myers v. Sessions, No. 17-71416 (9th Cir. 2018)
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Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, the Travel Act is divisible in that respect. Petitioner challenged the BIA's finding that he was removable for a controlled substance offense and ineligible for cancellation of removal.
The panel denied the petition for review in part and held that petitioner's conviction qualified as a controlled substance offense under the modified categorical approach. The panel held, however, that the BIA's conclusion that petitioner was ineligible for relief under 8 U.S.C. 1229b was not supported by substantial evidence. The panel held that section 1229b states that the relevant time period ends "when the alien is served a notice to appear." In this case, the BIA used the date on which the notice to appear was issued, not the date when it was served on petitioner. Therefore, the panel granted the petition in part and remanded for the BIA to consider petitioner's claim for cancellation of removal.
Court Description: Immigration. The panel denied in part and granted in part Zaldy Arquitola Myers’s petition for review of a decision of the Board of Immigration Appeals that found him removable for a controlled substance offense and ineligible for cancellation of removal, holding that: 1) the Travel Act, 18 U.S.C. § 1952(a)(3), is divisible; 2) Myers’s conviction under the Travel Act qualifies as a controlled substance offense; and 3) substantial evidence did not support the agency’s denial of cancellation of removal, and remanded. BIA concluded that Myers was removable for having been convicted of a controlled substance offense based on his conviction under the Travel Act, which makes it a crime to travel in interstate or foreign commerce with intent, among other things, to “promote, manage, establish, carry on, or facilitate . . . unlawful activity.” 18 U.S.C. § 1952(a)(3). The unlawful activity facilitated by Myers was identified as possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). To determine whether Myers’s conviction was a controlled substance offense under the Immigration & Nationality Act, the panel employed the three-step process articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and Descamps v. United States, 570 U.S. 254 (2013). First, the panel noted that in this case it was MYERS V. SESSIONS 3 agreed that the Travel Act is not a categorical match for a federal controlled substance offense. Second, the panel considered whether the Travel Act is divisible with respect to the “unlawful activity” with which a defendant is charged. The panel observed that the question was whether the “unlawful activity” is an element of the offense, meaning: whether it is necessary to identify a specific unlawful act to obtain a conviction under the Travel Act, or whether it would be sufficient to conclude that the defendant committed one or more of the crimes listed in the statute without specifying or reaching agreement on which crime. Looking to the law of the Fifth Circuit (in which Myers was convicted), the panel concluded that it appears from the Fifth Circuit cases that the specification of the “unlawful activity” is treated as an element for a Travel Act conviction and that, therefore, the statute is divisible. Third, applying the modified categorical approach, the panel concluded that Myers’s conviction was for a controlled substance offense that made him removable, explaining that the superseding information and plea agreement show that Myers pleaded guilty to 18 U.S.C. § 1952(a)(3), that the “unlawful activity” was possession with intent to distribute methamphetamine, and that methamphetamine is a federally controlled substance. With respect to cancellation of removal, the panel concluded that substantial evidence did not support the BIA’s conclusion that Myers lacked the required seven years of presence. A person seeking cancellation of removal must have resided in the United States continuously for seven years after having been admitted in any status, but the period is 4 MYERS V. SESSIONS deemed to end, among other times, when the alien is served a notice to appear. The BIA concluded that Myers was ineligible for cancellation of removal “because the notice to appear was served upon him in January 2013,” which is less than seven years after he was admitted to the United States in September 2006. However, the panel noted that the immigration judge did not make any finding regarding when the notice was served on Myers, but simply stated that Myers was “placed into proceedings on January 3, 2013.” Myers contended that he was not served with the notice until October 30, 2015, a date more than seven years after his admission. The Government acknowledged that the notice to appear was unclear, but contended that the dates were irrelevant because Myers’s continuous presence ended when he violated the Travel Act in 2011 and, as a result, any error was harmless. The panel rejected Government’s argument because the BIA did not make any such determination, concluding that the case must therefore be remanded to determine whether Myers is eligible for cancellation of removal. MYERS V. SESSIONS 5
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